The progress of popular intelligence which characterizes the age, has opened to public scrutiny the whole theory and policy of government. Too often have the people made the vain inquiry, why is not all law made conformable to equity? Why is the distinction retained, and why are we burthened with a double system of jurisprudence?

They observed that both were administered by the same officers, and both seemed to require the same kind of qualifications. There was a Chancellor, whose chief business it was to administer equity law, yet the same Chancellor sat as a judge of the highest court in the State when reviewing the judgments of the courts of law, but was excluded from a voice when judgment was required to be given according to the rules of equity. In like manner the judges of the Supreme Court, exclusively a court of law, were in turn converted into equity judges to review equity decisions. The circuit judges held courts and adjudged questions of law; they went to another place and were called Vice-Chancellors, and then had jurisdiction in equity. The lawyer when he maintained the cause of his client in a court of law, was called an attorney, he walked into a court of equity and became a solicitor.

The whole practice, pleading, mode of taking evidence and giving judgment, were different, and governed by different rules, yet administered by the same persons. The suitor must take his cause to the one court or the other, according as he was advised that it belonged to the legal or equitable side. To determine this question was not always an easy matter, eminent lawyers sometimes found in the end, that they had taken the wrong road, or at least the court so determined, and sent them back; other cases required the action of both courts, that is, a part of it must be tried in a court of law, and another part in a court of equity; both trials might perhaps be had before the same judge, and by the same counsel, but at different times and places; in one court the presiding officer was a judge, and

must be approached on that side, in the other he was Vice-Chancellor, and the suitor must come on the opposite side.

Ations at law, were classified under different forms and names, a person seeking redress, was obliged to select the form adapted to the character of his case, take the name and the appropriate dress of language of that form; if he misjudged or mistook the proper form of action, or the expressions appropriate to it, he was dismissed from court, with as little ceremony as if he had mistaken the entrance, and approached the judge on his equity side.

On the other hand, equity jurisprudence had its foundation in a disregard of all forms. It assumed to afford a remedy in cases to which the forms of law were not applicable; its proceedings were adapted to meet the case as it really existed.

In process of time, numerous rules of practice were adopted under the common law, training of its officers in defiance of its primitive design, until its administration assnmed a character of technicality scarcely inferior to, though widely different from that of the law courts. Its original simplicity when it proceeded with a single eye to an equitable conclusion regardless of forms, was no longer its characteristic.

To the embarrassments arising from these two concurrent courts and systems of practice, there had heen superadded in them both, a prolixity of pleading and a great redundance of words, which a long course of years had brought into use, under laws making the rule of compensation dependant on the number of words used.

This is a very summary outline of the more prominent features of the late systems of pleading and practice, which attracted public condemnation, and resulted in the appointment of commissioners to revise, reform, simplify and abridge and which drew from the Legislature instructions of a character still more specific and not less radical.

The commissioners have endeavored, both from a sense of obligation to the laws and from their own convictions of their propriety, to abide their instructions, and meet the just expectations of the people, whose opinions they expressed.

Nothing less than a thorough and entire revision of the whole system of legal procedure, could accomplish this object. The basis adopted for their action, was substantially that upon which courts of equity were originally founded; the natural course by which the means to be used, are directed solely by the end to be attained, without regard to the forms of action.

They could not but feel conscious that by this course, they of necessity placed themselves in an attitude adverse to the immediate interests, as well as to the trained habits and learning, of a large number of the profession to which they belong. The character of the profession is in its very nature eminently conservative in all its tendencies; the rules of jurisprudence are all drawn from the past; precedent is the lawyer's guide. The spirit of reform and innovation which characterizes the age, and to which the world is indebted for all the advances of the present century, are seen at a distance by those who administer the law; they may appreciate and enjoy them in their personal and public relations, but in their own profession they still pore over the musty volumes of antiquity in search for precedent.

The commissioners had not the presumption to expect, or the folly to hope, that they could originate and produce at a single effort a system so perfect, as not to contain many deficiencies, and to demand correction and construction for years.

They could lay down principles, and adapt them to practical use, but to improve and perfect them, to settle their construction, is necessarily the work of time and experience. Neither the Commis missioners, nor any sensible friend of reform, ever expected or pre

tended that in the details of any new system, so comprehensive in its scope, there would not occur both errors and omissions. Rarely, if ever, in the whole history of human progress, has a valuable improvement in any branch of science, philosophy, or the arts, come into existence in full perfection. Time and experience are necessary elements in human advancement: mind comes to the aid of mind, and one suggestion leads to another. We have as yet had the benefit of a few months only of trial, to detect the imperfections of so much of our system as was adopted last winter, and took effect on the first day of July last. We now present to the Legislature the result of this limited though severe test, by proposing several amendments and additions intended to correct the errors and supply the deficiencies already manifested in the part heretofore reported.

The Commissioners have, individually, availed themselves of all suitable opportunities to invite from members of the legal profession, and from the judges, communications of discoveries of any defects or omissions which might occur in the course of their practice, with a view to their correction. Some valuable suggestions have been received, and their own personal observation and examination have led to others which are embraced in the amendments presented.

Of the soundness of the principles upon which they have endeavored to build up a system of legal procedure, the Commissioners entertain no doubt whatever. That the superstructure they have erected, in detail, is free from defects, they have no expectation. Amendments and improvements from year to year will be made; some of these will again be found defective. But the Code of Procedure is by no means peculiar in this respect. Amendments to the common law, and to the statute law, and to the practice in courts, have been the subjects of annual legislative enactment, ever since the government existed; volumes of judiciary constructions are annually issued, and by their means the law is kept continually changing.

After the practice of the courts of law and equity had been established in this State on the English basis, and had enjoyed the benefit of more than fifty years construction, to settle its rules and principles it was still found so loose, uncertain and defective, as to require more than one hundred and fifty new general rules adopted by the late Chancellor, in addition to those which existed in the time of his predecessor. And so often was the past practice found to be inadequate or erroneous, and so fluctuating, that the Legislature required a periodical correction of its errors and defects, by directing the Chancellor to revise and amend the rules of his courts at stated times. This revision was repeatedly made, and at the periods required by law the old rules became obsolete, and a new volume was issued with such modifications as had beed adopted during the last interval, and such changes as the Chancellor deemed expedient

While such was the variable condition of the practice in chancery, that of the Supreme Court was scarcely more permanent: new laws, new constructions, and new rules, were of constant occurrence.

The special terms of the late Supreme Court, at which questions of practice were for the most part determined, were always held at the capitol. The consequence was, that but few of the legal practitioners were enabled to attend, and these few enjoyed not only a monopoly of the business, but also of a knowledge of the practice itself, except so far as others were able to follow by means of the meagre reports of a small number only of the multitude of cases decided.

Thus it will appear that the history of legal procedure in this State presents a continual series of construction and change by the courts and by legislative action, notwithstanding the boasted antiquity of its origin.

It cannot, therefore, properly excite distrust, or afford the slightest evidence against the value of the new system, that it requires, in the